Devo-max or Agreement-Max? Northern Ireland after the Scottish Referendum

It has become common political wisdom first in Britain, and latterly in the Irish state, to say that devolution in Northern Ireland means that politicians there must sort out their own conflicts without input from the two states. This is misconceived. In the Northern Irish case, devolution takes a radically different form and function than devolution elsewhere in the United Kingdom. In Northern Ireland devolution is a mode of conflict regulation; how it functions depends on how it fits within the wider institutional and constitutional configuration defined by Agreement. If it fails to function as an adequate mode of governance, the fault lies not simply in the political leaders but in the wider configuration which sets incentives, defines opportunities, and gives (or fails to give) a sense of the legitimacy of the political process. That sense of legitimate political balance was hard-won, and it is inevitably cast into question with wider global and national changes. This is all the more likely because it rests on an informal – if ‘determined’ – mode of resolving ongoing disputes of interpretation and of principle by the Irish and British governments. If that informal mode is deemed by the two governments to be either unnecessary or impossible in present circumstances, an alternative must be found.

In this context, the Scottish referendum debates provided a welcome reminder of the powers of constitutional rethinking. In the weeks after the narrow defeat of the ‘yes’ campaign, the inevitability of considerable constitutional remodelling is clear. From an Irish perspective, it is necessary that the principles of the 1998 Agreement be reaffirmed and modes of accountability and adjudicability in areas where they are not already present (not least ‘parity of esteem’, the past, public symbolism) be clearly put in place. By definition, where the only point of agreement in Northern Ireland remains the Agreement (GFA/St Andrews), the Northern Ireland parties cannot themselves adjudicate differences of interpretation of its principles.

In recent working paper I have argued that the success of the GFA has rested on an innovative and informal British-Irish ‘constitutionalism’. The recent political crises show the dangers inherent in this constitutional mode. Radical power-imbalance between the states and new priorities for each allow slippage towards a purely British constitutionalism which undermines the legitimacy and stability of settlement. We don’t need devo-max so much as Agreement-Max, and for that the British and Irish governments have to move beyond symbolic gestures to look at the principles in terms of which Agreement was reached and stabilised.
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